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The exception must be timely. No appreciable lapse of time must intervene between the adverse ruling and the exceptions, which may mean salvation.
The necessity for expedition and certitude is illustrated in a very emphatic manner by the rulings of the United States Supreme Court and the United States Circuit Court of Appeals in the matter of exceptions to instructions.
The judges of our federal courts rarely depart from the ancient and time-honored privilege of instructing the jury orally. Such instructions generally embody several, sometimes many, propositions.
Usually they are not paragraphed or punctuated.
Counsel can not secure time within which to have the charge extended, especially as no provision is made for a court stenog. rapher. Nor has he time to devote to such judicial declarations that careful and earnest study which charges not infrequently require. Nevertheless, there must be an objection and an exception to each distinct proposition.
In glancing over the reports of the Circuit Court of Appeals, I have discovered one case in which the portion of the charge excepted to contained nine lines. These nine lines, or what was said in them, were applicable to one phase of the case, or seemed to be, and were excepted to as a whole. The learned court, in overruling the exception, gravely stated that there were ten propositions of fact embodied in these nine lines, and that as the exception was to the whole, the court could not conscientiously consider any of them.
The reason given in substance, though not in words—is that it is not fair to the trial court.
A trial court should be given an opportunity to correct its errors, by having attention called to each proposition contained in the erroneous statement of fact or law.
What a task for a weary, careworn lawyer! Upon what small things may depend the life, liberty or property of a citizen!
Such tender consideration for the feelings of the trial judge might possibly result in grievous wrongs to an innocent litigant.
In the case referred to, it was not difficult for the reviewing judge, in the seclusion of his chambers, with mental activi. ties aided by pen or pencil, to analyze the nine lines and find stated ten different propositions.
How different with counsel attempting to give attention to a rapidly delivered oral charge, sometimes continuing for an hour. He is practically required to exercise omniscience when asked, under the circumstances indicated, to point out substantially each separate and distinct proposition in which he conceives there may be embodied a material error.
Not only must the objection and exception be specific, but, as before stated, it must be timely.
Counsel must act while the jury is at the bar.
As the charge of the federal judge is the last act in the drama. and is usually followed by directions to the jury to retire with the bailaff, the position of the attorney is often embarrassing and distressing.
Many judges of the federal courts, with a generous desire to mitigate the hardships of the rule, have permitted the specific objections and exceptions to be made and taken when there is more leisure and a fair opportunity for consideration.
But when the bill of exceptions shows the truth in this respect, the ruling has uniformly been that the reviewing tribunal had no power to consider the exceptions.
By these comments, no criticism or reflection is intended upon the federal judiciary. They but follow a rule which has existed for many years.
The American bar, and especially the bar of Colorado, entertains for the federal bench the most unbounded respect, and for the federal judiciary the highest sentiment of regard and esteem.
Their learning, their wisdom, their dignity, their impartiality and their courtesy, coupled with the inspiring kuowledge of their freedom from partisan influences, make the federal bench one of the chief glories of our nation.
Nevertheless, it may not be improper to suggest to our most distinguished guests that the certainty and stability of the law as applied to the life, liberty, property or happiness of the cit. izen, would not be overthrown by a departure from or modification of this rule, either by judicial decision or rule of practice.
When error has been dextrously secured, objections made and exceptions taken, all is not done.
These must be made a part of the record by bill of exceptions. It is here the lawyer or the trial judge may make a fatal slip. This important part of the record must not only be signed by the judge, but must be still more solemn. It must be sealed. It does not avail that the legislature may have abolished seals, or that the judge has no armorial bearings which it is a pride to perpetuate in a signet. If the actual seal be lacking, there must be a scroll. If you or your clerk or your stenographer or your janitor fails to put a scroll on the right hand of the line left for the signature, or if the busy judge should overlook placing that important point where it properly belongs, you are gone. All your toil and labor and mental strain are thrown away. All errors are expunged, all objections waived, all exceptions abandoned and your client's interests irretrievably fixed, all on account of the absence of the meaningless flourish of pen and ink.
It must be borne in mind that the seal of the court is not sufficient. It must be an individual matter, a stereotyped "L. S." It has never been judicially determined whether the scroll must actually be convolved or twisted or in some manner distorted, but it would be an unpardonable risk to make the lines straight,
It is proper to pass without special reference the preparation of the record, assignment of errors, abstracting, briefs, arguments, decisions and petition for rehearing.
The latter is rarely more than a matter of form. The petitioner has about the same chance of success that Admiral Cervera had to escape from the harbor of Santiago de Cuba.
The petition for review is a proceeding intended to supply the place of a practice once universal and even now not quite obsolete, of cussing the court.
By this latter procedure, the client may not secure a review of his case, but the lawyer frequently secures a personal review.
Errors occurring in litigated cases affect only individual rights. There are graver errors.
Errors of man's inhumanity to man. Errors of governmental oppression. The latest illustration of an appeal from such errors is by the oppressed and starving "patriots of the Queen of the Antilles to the strong and protecting arm of our country. Diplomacy interposed objections, exceptions were reserved by congress, the bill of exceptions was sealed with the lives of those whose sacrifice created the battle cry of “Remember the Maine!"
The appeal has been entertained. The blood of American freemen testifies to the justness of the cause.
American soldiers and sailors with unexampled heroism advocate the claim of justice and liberty.
The judgment is already being rendered. It will be a de. fense of those principles upon which are based the rights of free men, and the nations of a wondering world will again be taught the fundamental truths upon which are founded a government by the people, of the people and for the people.
Toatsmaster Rogers: You will observe by reference to the programme this evening that we have reversed the usual order of proceeding. We have started with the Supreme Court and propose to end with the bar, the original fountain and source of all law and justice. In these days of social unrest, the demand is made that we reverse the old order. It has gone so far that the American people, believing the standard from which the American flag flies has too long pointed in one direction, now demand that it point in still another. In reversing the order, the judges of the courts inferior to the Supreme Court will have the opportunity to state why the former in the magnitude of its business has not always appreciated the fact that law is founded upon truth and simple horse sense. To-night we have with us a gentleman who exemplifies the proverb that “A good thing may even come out of the state of Arkansas." He will show us wherein the Supreme Court has not appreciated the primary elements of law and justice, as applied by him in that famous case known as “The Coon-Skin Cap Case,” which is fast becoming recognized as a precedent in the administration of railroads by the courts through their receivers. I have the pleasure of introducing Justice Caldwell, of the Circuit Court of Appeals of the United States. (Applause.)
TOAST OF JUDGE HENRY C. CALDWELL.
"COON-SKIN CAP LAW.” Mr. Toastmaster--I am persuaded that you are possessed of some occult power. In no other way could you have knowledge of the legend of the “Coon-skin Cap Law.” Seeing that you are in possession of the secret, I may as well impart it to all present.
To those not blest with the occult power of the toastmaster the toast implies a comedy, but in fact it relates to a tragedy, and to the saddest of all tragedies-a tragedy directly traceable to judicial ignorance and error, and which “revives the memory of rooted sorrow, which weighs upon the heart.”
Mr. Ruskin says, "The greatest thing a human soul ever does is to see something and tell what it saw in a plain way." I will essay that task.
A man entered into a contract with a railroad company whose road ran through two or more states, to furnish wood and ties to the company, to be taken from timber lands in the Mississippi River bottom, which at that point was fifty miles wide and annually overflowed from five to twenty feet in depth. In this bottom, perched upon stilts, he built a log cabin, and, with his wife and an old negro man who assisted him in his work, lived there, except during the periods of overflow, when they were driven to the hills.
He was engaged in this work about four years, during which time the company, which was in a chronic state of impecuniosity, only paid him on account a sum barely sufficient to buy enough meal and bacon to subsist upon.
The annual overflow drove him out of his cabin to the hills; sickness ensued, and it was nearly a year before he was ready to resume his work; and just as he was ready to do so, the railroad went into the hands of a receiver, upon a bill filed to foreclose a mortgage upon it.
All this happened more than a quarter of a century ago. When the bill was filed the timid and callow judge found some authority for treating as preferential, claims for labor and materials that had accrued within three or four months; and he stretched this to six months and made an order accordingly.
Presently a petition of intervention was filed in the case, and when it came on for hearing, the intervenor appeared in person to represent his claim. He wore a coon-skin cap, with the tail hanging down the back, coarse cotton shirt, and pants and shoes to correspond. He was long past the meridian of life, his hands were calloused by toil and his face wore the "shadowed livery of the burnished sun.” But the wrinkles, the sunburn and the unkempt beard could not conceal from view that ineffaceable and unfading charm that always marks the face of the man of honest good will. The poet took no liberty with truth when he said, “Honest labor bears a lovely face." It was evident that he had earned his bread according to the divine decree, "in the sweat of his face.”
In a plain, modest manner he told how he had worked getting out wood and ties for the road, and how the company had made small payments from time to time, always promising payment in the near future. The balance due him for wood and ties amounted to over seren hundred dollars, a sum which to him was a fortune, and all his fortune.